B-866, MARCH 14, 1939, 18 COMP. GEN. 705

B-866, MARCH 14, 1939, 18 COMP. GEN. 705

MILEAGE - TRAVEL BETWEEN UNITED STATES AND ALASKA - SUPERIOR STEAMSHIP ACCOMMODATION COST LIABILITY MILEAGE IS PAYABLE UNDER THE ACT OF JUNE 12, 1906, 34 STAT. 246, AND SECTION 12, ACT OF JUNE 10, 1922, AS AMENDED JUNE 1, 1926, 44 STAT. 680, FOR TRAVEL BETWEEN THE UNITED STATES AND ALASKA, ONLY FROM POINT OF DEPARTURE IN THE UNITED STATES TO FIRST POINT OF ENTRY IN ALASKA, AND FROM LAST POINT OF DEPARTURE IN ALASKA TO POINT OF ENTRY IN THE UNITED STATES, AND IN THE COLLECTION OF A MILEAGE OVERPAYMENT BROUGHT ABOUT BY A MILEAGE PAYMENT FOR TRAVEL BETWEEN POINTS IN ALASKA, THERE MAY NOT BE ALLOWED IN SET OFF AN AMOUNT PAID FROM PERSONAL FUNDS FOR SUPERIOR STEAMSHIP ACCOMMODATIONS BECAUSE OF THE NONAVAILABILITY OF LOWEST FIRST-CLASS ACCOMMODATIONS, SECTION 10, ACT OF MARCH 3, 1933, 47 STAT. 1516, LIMITING THE COST OF TRANSPORTATION TO THE "LOWEST FIRST CLASS RATE BY THE TRANSPORTATION FACILITY USED," NOT PERMITTING OF EXCEPTIONS FOR ANY CAUSE WHATSOEVER.

DECISION BY ACTING COMPTROLLER GENERAL ELLIOTT, MARCH 14, 1939:

THERE IS FOR CONSIDERATION THE MATTER OF AN OVERPAYMENT IN THE AMOUNT OF $41.15 MADE TO LT.COL. WILMOT A. DANIELSON, QUARTERMASTER CORPS, UNITED STATES ARMY, ON VOUCHER NO. 269, SEPTEMBER 1936, ACCOUNTS OF CAPT. H. F. CHRISMAN, F.D., UNITED STATES ARMY, COVERING PAYMENT TO SUCH OFFICER FOR MILEAGE, SEATTLE, WASH., TO SEWARD, ALASKA, JUNE 18 TO 24, 1936, AND RETURN BETWEEN THE SAME POINTS, AUGUST 21 TO SEPTEMBER 4, 1936, BEING FOR THE OFFICIAL DISTANCE EACH WAY OF 1,856 MILES, OR 3,712 MILES AT 8 CENTS PER MILE, IN THE AMOUNT OF $296.96, LESS 3 CENTS PER MILE FOR TRANSPORTATION FURNISHED ON GOVERNMENT TRANSPORTATION REQUEST NO. WQ- 2081112, ISSUED TO ALASKA STEAMSHIP CO. FOR "MINIMUM FIRST-CLASS ACCOMMODATIONS," A DEDUCTION OF $111.36, LEAVING THE NET PAYMENT OF $185.60 MADE SEPTEMBER 5, 1936.

ORDERS OF JUNE 30, 1936, FROM THE ADJUTANT GENERAL DIRECTED LIEUTENANT COLONEL DANIELSON TO PROCEED FROM WASHINGTON, D.C., TO ALASKA POINTS IN TURN, I.E., SEWARD, PALMER, ANCHORAGE, FAIRBANKS, ANCHORAGE, SEWARD, AND JUNEAU, ON TEMPORARY DUTY, AND UPON COMPLETION OF THE SPECIAL DUTY ASSIGNED TO RETURN TO HIS PROPER STATION.

UNDER THE ACT OF JUNE 12, 1906, 34 STAT. 246, AND SECTION 12, ACT OF JUNE 10, 1922, AS AMENDED JUNE 1, 1926, 44 STAT. 680, MILEAGE WAS PAYABLE OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES ONLY FROM POINT OF DEPARTURE IN THE UNITED STATES TO FIRST POINT OF ENTRY IN ALASKA, SEATTLE TO SEWARD, AND FROM LAST POINT OF DEPARTURE IN ALASKA TO POINT OF ENTRY IN THE UNITED STATES, JUNEAU TO SEATTLE. 6 COMP. GEN. 675. LIEUTENANT COLONEL DANIELSON HAVING BEEN PAID MILEAGE FROM SEWARD INSTEAD OF JUNEAU, WAS OVERPAID MILEAGE FOR 823 MILES, OR IN THE AMOUNT OF $41.15. HE DOES NOT QUESTION THE CORRECTION OF THIS DISALLOWANCE, BUT HAS NEGLECTED AND REFUSED TO REFUND ALL OF THE AMOUNT OVERPAID HIM SEPTEMBER 5, 1936, ON THE CONTENTION MADE BY HIM THAT HE SHOULD BE ALLOWED TO OFFSET SUCH ERRONEOUS PAYMENT AGAINST UNFOUNDED CLAIMS. ON SEPTEMBER 11, 1937, HE ADVISED THE FINANCE OFFICER, SEATTLE, WASH., THAT SINCE THE MILEAGE PAYMENT WAS IN ERROR FOR TRAVEL FROM SEWARD TO JUNEAU, HE WAS ENTITLED TO A PER DIEM OF $6 FOR THE TRAVEL TIME BETWEEN THESE POINTS, AND THAT HE WAS ALSO ENTITLED TO REIMBURSEMENT IN THE AMOUNT OF $7, PAID FROM PERSONAL FUNDS FOR SUPERIOR ACCOMMODATIONS, NOT FURNISHED BY THE CARRIER ON TRANSPORTATION REQUEST, FOR HIMSELF AND MASTER SERGEANT WALTER J. STEWART BETWEEN SUCH POINTS. AFTER CONSIDERABLE FURTHER CORRESPONDENCE HE REFUNDED $22.15, THE CHECK FOR SUCH AMOUNT BEING FORWARDED TO THE FINANCE OFFICER, SEATTLE, BY HIS SEVENTH ENDORSEMENT DATED JANUARY 18, 1938, AS FOLLOWS:

1. THE UNDERSIGNED APPRECIATES THE STAND THAT YOU MUST NECESSARILY TAKE IN THIS MATTER. CONSIDERATION IS ALSO GIVEN TO THE FACT THAT THE COMPTROLLER GENERAL WILL NOT FAVORABLY CONSIDER CLAIMS OF THE KIND SET FORTH IN THE FOREGOING. THE FACT IS THAT THE RETURN PASSAGE WAS ENGAGED JUST AS SOON AS THE SITUATION HAD BEEN SURVEYED SO THAT A RETURN DATE COULD BE ESTABLISHED. THIS WAS DONE WITHIN TWO DAYS AFTER THE ARRIVAL AT THE DESTINATION. HAD WE REMAINED AT SEWARD UNTIL THE NEXT BOAT IN WHICH THE LOWEST FIRST-CLASS WAS AVAILABLE, THE PER DIEM WOULD HAVE GONE ON, AND THE COST TO THE GOVERNMENT WOULD HAVE BEEN MUCH GREATER. THE OTHER TWO OFFICERS PAID THE ADDITIONAL TRANSPORTATION IN CASH AND I PAID FOR THE ENLISTED MAN, MASTER SERGEANT WALTER J. STEWART, AND MYSELF, A TOTAL OF $7.00. IF THIS PARTICULAR ISSUE CAN BE SUCCESSFULLY RAISED WITH THE COMPTROLLER GENERAL, IT WILL BENEFIT ALL OTHERS WHO TRAVEL IN ALASKA UNDER SUCH CIRCUMSTANCES. IF CONSTRUED THAT MILEAGE WILL BE PAID ONLY FROM JUNEAU TO SEATTLE, THEN THE DUTY UNTIL WE LEFT JUNEAU WAS WITHIN ALASKA, AND FROM ALL THAT I CAN ASCERTAIN, PER DIEM IS PAID FOR ALL THIS TIME. CERTAINLY IF MILEAGE IS PAID FOR SEA TRAVEL, AS IS PROPER UNDER THE LAW, THEN PER DIEM SHOULD BE PAID WHEN MILEAGE IS NOT GIVEN. PER DIEM INVOLVED FROM SEWARD TO JUNEAU IS, I THINK, TWO DAYS, OR A TOTAL OF $12.00.

2. BY INSISTING ON CONSIDERATION ALONG THE LINES JUST MENTIONED, IS APPARENTLY THE ONLY WAY TO GET CONSIDERATION ON THIS JUST CLAIM. IT IS REALIZED THAT THIS WILL SUSPEND YOUR ACCOUNTS FOR A LONGER PERIOD, BUT THAT WILL NOT INVOLVE YOU IN ANY OUTLAY OF CASH. THE DIFFERENCE AS I SEE IT, BETWEEN WHAT I CLAIM AND THE AMOUNT THAT SHOULD BE REFUNDED BY ME, AS YOU SEE IT, IS $22.15. I AM INCLOSING MY CHECK FOR THIS AMOUNT. I DO NOT FEEL THAT THE COMPTROLLER GENERAL SHOULD TRY TO FORCE ME TO PAY THE ADDITIONAL SUM TO MAKE A TOTAL OF $41.15.

BY 8TH INDORSEMENT CAPTAIN CHRISMAN ADVISED LIEUTENANT COLONEL DANIELSON, AS FOLLOWS:

1. RECEIPT IS ACKNOWLEDGED OF YOUR CHECK OF $22.15. SAME HAS THIS DATE BEEN TAKEN UP IN THE ACCOUNTS OF THE UNDERSIGNED IN PARTIAL SETTLEMENT OF OVERPAYMENT MADE TO YOU. W.D.F.D. FORM 38 WILL BE FORWARDED UNDER SEPARATE COVER.

2.IN YOUR 7TH INDORSEMENT ABOVE, YOU HAVE REQUESTED SET-OFF AGAINST THIS SUSPENSION IN THE SUM OF $19.00, $7.00 BY REASON OF EXCESS FARE PAID BY YOU FOR SUPERIOR ACCOMMODATIONS, AND $12.00 FOR PER DIEM AT $6.00 PER DAY FROM SEWARD TO JUNEAU. TO ATTEMPT TO PROSECUTE A CLAIM IN THIS MANNER WILL MERELY RESULT IN DELAYING SETTLEMENT OF THE MATTER. BOTH OF THESE ITEMS ARE CLEARLY COVERED IN REGULATIONS AND COMPTROLLER'S DECISIONS.

3. A. AS TO YOUR CLAIM FOR PER DIEM OF $6.00 PER DAY FOR THE TWO DAYS INVOLVED IN TRAVEL BY SEA FROM SEWARD TO JUNEAU, YOUR ATTENTION IS INVITED TO THE LAST SENTENCE OF PAR. 7. A.R. 35-4820. SINCE TICKET INCLUDED BERTH AND MEALS, NO ADDITIONAL AMOUNT IS PAYABLE.

B. AS TO YOUR CLAIM FOR $7.00, REPRESENTING ADDITIONAL AMOUNT OVER TRANSPORTATION REQUEST EXPENDED BY YOU FROM PERSONAL FUNDS FOR SUPERIOR ACCOMMODATIONS, YOUR ATTENTION IS INVITED TO 14TH COMP. GEN. 460, WHICH PROVIDES THAT REIMBURSEMENT MAY NOT BE MADE FOR SUPERIOR ACCOMMODATIONS, EVEN THOUGH LOWEST FIRST-CLASS ACCOMMODATIONS ARE NOT AVAILABLE. COPY OF THIS DECISION MAY BE SEEN BY YOU AT THIS OFFICE OF YOUR LOCAL FINANCE OFFICER.

4. IT IS REQUESTED THAT YOUR CHECK FOR $19.00 BE FORWARDED PROMPTLY IN ORDER THAT THIS FILE MAY BE CLOSED.

LT.COL. DANIELSON THEN REFUNDED $12 MORE TO APPLY ON THE OVERPAYMENT MADE TO HIM SEPTEMBER 5, 1936, THE CHECK FOR SAID AMOUNT BEING FORWARDED TO THE FINANCE OFFICE BY 9TH INDORSEMENT DATED FEBRUARY 23, 1938, AS FOLLOWS:

1. THE REGULATIONS MENTIONED IN PARAGRAPH 3A OF THE FOREGOING INDORSEMENT DO NOT PERMIT A PER DIEM AS CLAIMED, BUT NEVERTHELESS THEY ARE INCONSISTENT WITH THE RULING THAT PERMITS MILEAGE FOR SEA TRAVEL BETWEEN THE UNITED STATES PROPER AND ALASKA. MY CHECK FOR $12.00 AS REIMBURSEMENT IS INCLOSED HEREWITH.

2. THE COMPTROLLER GENERAL'S DECISION RELATIVE THE ADDITIONAL SUM PAID OVER AND ABOVE FIRST-CLASS FARE IS NOT REASONABLE. AS STATED PREVIOUSLY IN THIS CORRESPONDENCE, HAD THE UNDERSIGNED WAITED UNTIL THE LOWEST FIRST- CLASS SPACE WAS AVAILABLE, MANY DAYS OF THE $6.00 PER DIEM WOULD HAVE ACCUMULATED. IT MIGHT HAVE BEEN A MONTH, WHICH WOULD HAVE TOTALED $180.00. HE WOULD HAVE BEEN SUBJECTED TO CRITICISM AND PROBABLE CENSURE BY THE WAR DEPARTMENT BECAUSE THE REPORT BY THE BOARD HAD TO BE EXPEDITED TO THE EXTENT THAT A PRELIMINARY REPORT BY RADIO WAS REQUIRED BEFORE THE BOARD LEFT ALASKA. IT IS UNDERSTOOD THAT THIS RULING HAS AFFECTED ADVERSELY MANY OTHERS AS WELL AS THE MEMBERS OF THIS PARTICULAR BOARD. IS APPARENT THAT THE COMPTROLLER GENERAL'S OFFICE DOES NOT UNDERSTAND THE CIRCUMSTANCES, OTHERWISE IT WOULD NOT MAKE SUCH A RULING. ATTENTION IS AGAIN INVITED TO THE FACT THAT AS SOON AS THE BOARD ARRIVED AND COULD ESTIMATE THE LENGTH OF TIME REQUIRED FOR ITS WORK, IT ARRANGED FOR RETURN RESERVATIONS. UNDER THE CIRCUMSTANCES, THERE IS NO EQUITY IN THIS REFUND; REIMBURSEMENT IS THEREFORE NOT BEING MADE. TO PRESENT A CLAIM WILL NOT GET THIS MATTER THE ATTENTION THAT IT WARRANTS.

OBVIOUSLY LT.COL. DANIELSON HAS MADE NO EFFORT TO ACQUAINT HIMSELF WITH THE BASIS OF THE SO-CALLED RULE SET OUT IN 14 COMP. GEN. 460, CITED BY THE DISBURSING OFFICER AND VARIOUS OTHER DECISIONS CITING SECTION 10, ACT OF MARCH 3, 1933, 47 STAT. 1516, WHICH LIMITS THE COST OF TRANSPORTATION TO "NOT EXCEED THE LOWEST FIRST-CLASS RATE BY THE TRANSPORTATION FACILITY USED IN SUCH TRAVEL.'

THIS IS A LIMITATION PRESCRIBED BY STATUTE. IT IS CLEAR AND UNAMBIGUOUS AND ADMITS OF NO EXCEPTION BASED ON AN EMERGENCY OR OTHERWISE. CLEARLY THIS OFFICE IS WITHOUT AUTHORITY TO ALLOW ANY SUM IN EXCESS OF THE LOWEST FIRST-CLASS FARE.

THE LAWS AND REGULATIONS PROVIDING FOR REIMBURSEMENT OF TRAVEL EXPENSES COVER IN GENERAL THE ITEMS OF EXPENSE WHICH MAY BE INCURRED AND THEY ALSO INCLUDE CERTAIN LIMITATIONS AND RESTRICTIONS. ON THE OTHER HAND THE COMMUTED ALLOWANCES MAY FAR EXCEED THE ACTUAL AND NECESSARY EXPENSES OF AN OFFICER WHILE TRAVELING. MILEAGE IS AN ALLOWANCE WHICH FREQUENTLY EXCEEDS THE ACTUAL AND NECESSARY EXPENSES OF AN OFFICER ORDERED TO MAKE A LONG OFFICIAL TRIP.

LT.COL. DANIELSON WAS PAID MILEAGE FOR THE DISTANCE FROM WASHINGTON, D.C., TO SEATTLE, WASH., ON VOUCHER NO. 389, JULY 1936, ACCOUNTS OF CAPT. O. W. DEGRUCHY, F.D., FORT LEWIS, WASH., IN THE AMOUNT OF $231.86, BEING FOR 2,974 MILES AT 8 CENTS PER MILE, LESS 3 CENTS PER MILE FOR 202 MILES LAND GRANT INCLUDED IN THE ESTABLISHED ROUTE AND DISTANCE. HE HAS PAID THE SAME AMOUNT ON VOUCHER NO. 1506, OCTOBER 1936, ACCOUNTS OF MAJ. E. C. MORTON, A TOTAL PAYMENT FOR MILEAGE BETWEEN WASHINGTON AND SEATTLE OF $463.72. WHILE IT WOULD APPEAR THIS OFFICER WAS SUPPLIED WITH TRANSPORTATION REQUESTS FOR USE ON THIS TRAVEL, PRESUMABLY HE DID NOT UTILIZE THEM DUE TO THE FACT TRANSPORTATION COULD BE PROCURED FOR LESS THAN THE 3 CENTS PER MILE REQUIRED BY LAW TO BE DEDUCTED FROM THE MILEAGE ACCOUNT FOR TRANSPORTATION FURNISHED ON GOVERNMENT REQUEST. ASSUMING THAT TRANSPORTATION MAY HAVE BEEN PROCURED FOR $130.45 FOR THE ROUND TRIP, PULLMAN ACCOMMODATIONS FOR $42 FOR THE ROUND TRIP, AND SUBSISTENCE FOR $6 PER DAY FOR 8 DAYS' TRAVEL TIME, $48, OR A TOTAL OF $220.45, THE OFFICER MAY HAVE RECEIVED AN ALLOWANCE OF $243.27 IN EXCESS OF ACTUAL AND NECESSARY EXPENSES BETWEEN THESE POINTS. OF THIS AMOUNT $35.87 REPRESENTS GAIN BY NOT USING TRANSPORTATION REQUESTS FOR THIS PART OF THE TRAVEL, BEING 5,948 MILES AT 3 CENTS PER MILE, $178.44 LESS ACTUAL COST OF TRANSPORTATION $130.45 AND $12.12 LAND-GRANT DEDUCTION.

LT.COL. DANIELSON WAS ALSO ENTITLED TO COMMUTED TRAVEL ALLOWANCE ON A MILEAGE BASIS FOR WATER TRAVEL FROM SEATTLE TO SEWARD AND FROM JUNEAU TO SEATTLE. HE DID NOT PROCURE HIS OWN ACCOMMODATIONS FOR THIS PART OF THE JOURNEY AS HE HAD DONE AT A PROFIT TO HIMSELF FOR THE LAND TRAVEL IN THE UNITED STATES, BUT ISSUED A GOVERNMENT TRANSPORTATION REQUEST TO THE ALASKA STEAMSHIP CO. FOR STEAMER TRANSPORTATION WHICH INCLUDED MEALS AND LODGINGS. FOR TRANSPORTATION THUS FURNISHED A DEDUCTION OF 3 CENTS PER MILE, OR $55.68, WAS MADE FROM HIS MILEAGE ACCOUNT FOR TRANSPORTATION WHICH COST THE UNITED STATES $62.50, FROM SEATTLE TO SEWARD, AND THERE WAS DEDUCTED 3 CENTS PER MILE, OR $30.99, FOR TRANSPORTATION FROM JUNEAU TO SEATTLE WHICH COST THE UNITED STATES $41. DUE TO THE FACT THAT MEALS AND BERTH WERE INCLUDED IN THE TRANSPORTATION FOR WATER TRAVEL, WHICH COST THE UNITED STATES $16.83 MORE THAN THE AMOUNT DEDUCTED FROM HIS MILEAGE ACCOUNT, HE WAS PAID 5 CENTS PER MILE COMMUTATION FOR MEALS AND LODGINGS WITHOUT INCURRING ANY ACTUAL EXPENSE OTHER THAN FOR TIPS, BEING FOR 2,889 MILES, OR THE SUM OF $144.45.

THESE FACTS SHOW THAT LT.COL. DANIELSON HAS REFUSED TO REFUND AN ACKNOWLEDGED OVERPAYMENT MADE TO HIM SEPTEMBER 5, 1936, IN CONNECTION WITH AN AUTHORIZED JOURNEY FROM WASHINGTON, D.C., TO CERTAIN POINTS IN ALASKA AND RETURN, BY REASON OF AN UNFOUNDED CLAIM FOR UNAUTHORIZED ITEMS OF TRAVEL EXPENSES TOTALING $7, WHILE THE COMMUTED ALLOWANCE IN CONNECTION WITH SUCH AUTHORIZED JOURNEY MAY HAVE RESULTED IN THE PAYMENT TO HIM OF AN AGGREGATE AMOUNT OF $387.72 ($243.27 PLUS $144.45) IN EXCESS OF THE EXPENSES ACTUALLY AND NECESSARILY INCURRED BY REASON OF SUCH ORDERED TRAVEL.

NOTWITHSTANDING THIS OFFICER HAS RECEIVED A PROFIT OF CONSIDERABLE AMOUNT, BY REASON OF THIS AUTHORIZED JOURNEY, HIS NEGLIGENCE AND DILATORY TACTICS IN REFUSING TO REFUND THE AMOUNT CLEARLY OVERPAID TO HIM, WHICH MAY NOT BE PASSED TO THE CREDIT OF THE DISBURSING OFFICER, HAS RESULTED IN FURTHER INCREASED EXPENSE TO THE GOVERNMENT BY REASON OF UNNECESSARY TIME AND CORRESPONDENCE IN CONNECTION WITH ITS COLLECTION. THE DISALLOWANCE OF $7 WILL NOT BE MODIFIED.